Transnational Security and Human Rights: Bridging The Divide

Transnational Security and Human
Rights: Bridging the Divide

Ian Turner
Lancashire Law School
University of Central Lancashire
idturner@uclan.ac.uk
Overview of presentation
Attacks by Islamist terrorists
Counter-Terrorism and
Security Act 2015
A right to security
A positive right to security
Theoretical justifications for

Ian Turner
Lancashire Law School a positive right to security
University of Central Lancashire
9/11 (2001)
The Shoe-bomber
(Richard Reid) (2001)
The Ricin case, a plot to

spread the deadly poison
ricin on the streets of
Britain (2003)
Madrid train bombings

(2004)
The 7/7 attacks on the
London transport network
(2005)
21st July failed suicide

bombings in London (2005)
Airline Bomb Plot, a plot to

blow up planes flying with
home-made liquids (2006)
Car Bomb attack in Glasgow

(2007)
Failed suicide bombing in

Exeter (2008)
Failed attempt to blow up an
airliner at Detroit airport on
Christmas Day (2009)
Parcel bomb from Yemen found

at East Midlands airport (2010)
Woolwich attacks (2013)
Shootings at the Jewish

Museum in Brussels (2014)
Massacre at the offices of

Charlie Hebdo in Paris (2015)
ISIL and the raising of the domestic
terror threat level
The Counter-Terrorism and Security Act 2015
The shocking attacks in Paris last

month, in which 17 people lost their lives,
and the many plots that the police and

security and intelligence agencies
continually work to disrupt,
are clear evidence of the threat we face

from terrorism.
The Counter-Terrorism and Security Act 2015
Section 1 seizure of passports etc from

persons suspected of involvement in
terrorism
Section 2 imposition of
temporary exclusion orders from
the United Kingdom
Section 16 amendment of the TPIMs 2011

Act allowing for a residence specified by the
Secretary of State, including at least 200 miles
away from a suspects home
A right to security: (1) Negative individual security against the state
The right to security of an individual is an example of a:
i) First Generation
ii) civil and political
iii) negative right
iv) a freedom from state intrusion.
Article 5(1) of the European Convention on

Human Rights (ECHR):
Everyone has a right to liberty and

security of person.
A right to security: (2) Security as justification to limit human rights
Many individual human rights are qualified,
in that they can be infringed by the state only for legitimate purposes
such as security.
Article 8(1) of the ECHR is the right
to privacy but is qualified by
Article 8(2), in the interests of:
i) national security
ii) territorial integrity or public
safety
iii) for the prevention of disorder
or crime etc
A right to security: (3) International, collective or human security
The right to security is also a:
i) Third Generation
ii) collective right of peoples and groups of individuals.
For example, Article 23(1) of the African Charter on

Human and Peoples Rights (ACHPR) states:
All peoples shall have the right to national and

international peace and security.
The responsibility to protect

populations from genocide, war
crimes, ethnic cleansing and crimes
against humanity (R2P)
This imposes obligations on

states to protect their civilians
(Pillar I) and
the international
community to help states
meet those obligations
(Pillar II).
If a state has manifestly failed in

its duty to protect, then Pillar III is
particularly relevant:
The international communityhas

the responsibility to use
In this context, we are prepared to
appropriate diplomatic,
take collective action, in a timely
humanitarian and other peaceful
and decisive manneron a case-
meansto help to protect
by-case basis and in cooperation
populations...
with relevant regional
organizations as appropriate,
should peaceful means be
inadequate
A right to security: (4) Positive state obligation to offer security to
individuals against other individuals
The final security concept requires states to take positive

measures to prevent harms committed by non-state actors.
In protecting individuals from violations of rights
by third parties
killing, torture, enforced disappearance,

slavery, for example
states are obliged to, say, criminalise such abuses

and
to investigate, prosecute, convict and adequately

punish those found to be responsible
Regionally, the concept of positive

obligations seems to be most developed in
the case law of the ECHR, such as:
Article 3, freedom from torture and

inhuman and degrading treatment and
punishment:
MC v. Bulgaria (2005) 40 EHRR 20
In some instances positive obligations can be drawn from the text of the
right itself:
Article 2(1) states: Everyones right to life shall be protected by law.

Individual protections aside, the ECHR

also imposes a positive duty on member
states to respect human rights;
indeed, the full title of the ECHR is the

Convention for the Protection of Human
Rights and Fundamental Freedoms.
And of particular significance is Article

1 of the ECHR:
The High Contracting Parties shall

secure to everyone within their
jurisdiction the rights and freedoms
defined in Section I of this Convention.
Bridging the divide: a positive right to security
A lawful killing?
A lawful torture?
Greater controls over those

suspected of terrorism?
Theoretical justifications for a positive right to security:
social contract (1) Thomas Hobbes (1588-1679)
Hobbes most famous

work was Leviathan
which was first published
in 1651.
Hobbes lived during a

very turbulent time in
Englands history eg Civil
War so was greatly
concerned at the evil of
state collapse.
Hobbes sought, therefore, to effect a strong central authority that

maintained peace and order.
If not, anarchy, which

Hobbes described as a
state of nature,
would ensue
a place where only

the strong would
survive
Human life in the state of

nature would be:
solitary, poor, nasty, brutish,
and short.
Only when the state had

failed to fulfil its bargain of
protection had it exceeded
its authority and the
individuals duties to honour
the social contract were
severed.
Theoretical justifications a positive right to security: social contract
(1) Thomas Hobbes (1588-1679)
In condoning an oppressive
government
if it provides peace and order
this state absolutism ignores the reason

why we may be entertaining a right to
security in the first place:
to protect the very principles of

democracy we are seeking to defend.
Indeed, Hobbes also failed to

appreciate how the state itself might
pose a threat to security
social contract (2) John Locke (1632-1704)
For Hobbes bad government was

better than no government. Not so
for John Locke who was writing a
generation after Hobbes.
Lockes principal work, Two

Treatises of Government, which
was published in 1690, was a
reaction to the allegedly tyrannical
government of James II.
But Locke further believed that

the individuals obligation to obey
the state, in return for security,
ceased in circumstances less

demanding than a breakdown of
peace and order:
To tell people they may provide for themselves by erecting a new

legislative, when, by oppression, artifice, or being delivered over to a
foreign power, their old one is gone, is only to tell them they may expect
relief when it is too late, and the evil is past cure.
This is, in effect, no more than to bid them first be slavesand men can
never be secure from tyranny if there be no means to escape it till they
are perfectly under it.
Furthermore, again in opposition to Hobbes,

Locke viewed the absolute power of the
sovereign as a threat to the security of
individuals.
He therefore advocated a minimal
state, whose power was limited to its
preservation; and therefore one that
guaranteed much more freedoms to
the individual.
[The] legislative can have no more power than this. Their power in the
utmost bounds of it is limited to the public good of the society.
It is a power that hath no other end but preservation, and therefore can
never have a right to destroy, enslave, or designedly to impoverish the
subjects
contemporary liberalism of John Rawls and Ronald Dworkin
communitarianism
The authors theoretical justification

for a right to security is a
compromise between the social
contract theories of Thomas Hobbes
and John Locke:
Hobbesian absolutism ignores,

say, liberal concerns about the
state being a threat to security
but
liberals perhaps pay too much

attention to individualism and too
little attention to community.
communitarianism
Recent communitarian theorists are Amitai Etzioni
and Mary Ann Glendon
For them, an important communitarian principle is redressing

the balance between individual rights and social responsibilities
communitarianism
Unless society begins to

redress the balance between
rights of the individual and a
persons obligations to the
community:
communitarians believe society is, and

will continue to be, self-centred and
driven by self-interests.
communitarianism
no society can
survive if people
only want rights
and are unwilling
to assume
responsibilities
To take and not to give,

to draw on the commonwealth, but to refuse
to contribute,
people demanding that the government, and
above all taxes, be curtailed,
while still seeking more government services

from education to public health, from housing
to protection from crime.
communitarianism and security
For Etzioni the

right to security is
more fundamental
than any others.
So much so, it
ought to be
treated as a class
unto itself.
The main reason that the right to security

takes precedence over all others is that all
the others are contingent on the protection
of life whereas the right to security is not
similarly contingent on any other rights.
And in reference to, say,

security measures post 9/11,
Etzioni believes that nations
did not lose their liberty as a
result of a small accumulation
of increased safety measures:
they did so when

they failed to
respond to urgent
public needs.
True patriotsrealize that one must protect the nation from all
enemies and the essence of what it means to be patriotic is to
protect our Constitution and its Bill of Rights with all our might.
Article 17 of the ECHR:
Prohibition of Abuse of Rights
Nothing in this Convention may be

interpreted as implying for any State,
group or person
any right to engage in any activity or

perform any act aimed at
the destruction of any of the rights

and freedoms set forth herein or at
their limitation to a greater extent than
is provided for in the Convention.
A positive right to security, grounded in communitarianism
Ian Turner
Lancashire Law School
The University of Central Lancashire

Transnational Security and Human Rights: Bridging The Divide

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Transnational Security and Human

Rights: Bridging the Divide

Attacks by Islamist terrorists

A positive right to security

Theoretical justifications for

The Ricin case, a plot to

Madrid train bombings

21st July failed suicide

Airline Bomb Plot, a plot to

Car Bomb attack in Glasgow

Failed suicide bombing in

Parcel bomb from Yemen found

Woolwich attacks (2013)

Shootings at the Jewish

Massacre at the offices of

The shocking attacks in Paris last

and the many plots that the police and

are clear evidence of the threat we face

Section 1 seizure of passports etc from

Section 16 amendment of the TPIMs 2011

The right to security of an individual is an example of a:

iv) a freedom from state intrusion.

Article 5(1) of the European Convention on

Everyone has a right to liberty and

Many individual human rights are qualified,

The right to security is also a:

ii) collective right of peoples and groups of individuals.

For example, Article 23(1) of the African Charter on

All peoples shall have the right to national and

The responsibility to protect

This imposes obligations on

If a state has manifestly failed in

The international communityhas

The final security concept requires states to take positive

killing, torture, enforced disappearance,

states are obliged to, say, criminalise such abuses

to investigate, prosecute, convict and adequately

Regionally, the concept of positive

Article 3, freedom from torture and

MC v. Bulgaria (2005) 40 EHRR 20

Article 2(1) states: Everyones right to life shall be protected by law.

Individual protections aside, the ECHR

indeed, the full title of the ECHR is the

And of particular significance is Article

The High Contracting Parties shall

Greater controls over those

Hobbes most famous

Hobbes lived during a

Hobbes sought, therefore, to effect a strong central authority that

If not, anarchy, which

a place where only

Human life in the state of

Only when the state had

if it provides peace and order

this state absolutism ignores the reason

to protect the very principles of

Indeed, Hobbes also failed to

For Hobbes bad government was

Lockes principal work, Two

But Locke further believed that

ceased in circumstances less

To tell people they may provide for themselves by erecting a new